U.S.: Guantanamo habeas working

Posted Mon, August 2nd, 2010 2:47 pm by Lyle Denniston

The Supreme Court-mandated system for reviewing the legality of detention at Guantanamo Bay is working, and the prisoners should not be allowed to control their ultimate fate by refusing offers for resettlement to other countries, the Justice Department argued to a federal court on Monday. The filing in D.C. Circuit Court was in response to that Court’s request for a reaction to a new challenge by five Chinese Muslim “Uighurs” still at Guantanamo even though cleared for release.

The Uighurs — whose case the Supreme Court had agreed to hear last Term but returned it to the Circuit Court without a ruling — have asked the en banc Circuit Court to reconsider the case and order a new fact-finding hearing on their current status and the scope of their habeas rights.

No further review should be granted, the Department contended, because there is no dispute on the only fact that counts — that is, the five prisoners have had offers to be resettled in other countries, and have refused to take any such offer.

The plea for a new fact-finding process in District Court, the Department said, “depends on a theory that a Guantanamo detainee who does not want to be resettled in a third country because, for example, it lacks cultural affinity or would not permit him to own real property…, can compel a court order requring the United States Government to bring him into this country for release simply by declining to accept the resettlement offer.”

The Supreme Court’s 2008 ruling in Boumediene v. Bush, declasring a constitutional right for Guatanamo detainees to test in court their confinement, has been followed by a court review system that has now cleared 41 prisoners for release, the Justice Department said. Of 12 cases that have become final, all 12 have now left Guantanamo, it noted.

The Uighurs, it added, are “wrong to claim that meaningful habeas relief is not available absent this Court’s en banc review. These five individuals, the Department said, “are the only Guantanamo detainees with final orders granting habeas relief who still remain in U.S. custody….The writ of habeas corpus is effective at Guantanamo, and the question posed by the petition for rehearing en banc — whether a federal court could ever order release of a detainee in the United States — simply is not presented at this stage of proceedings.”

The new filing also once again offered a defense of the constitutionality of new laws passed by Congress, barring the transfer into the U.S. of any Guantanamo prisoner who is ordered released by a federal court.

Under the Circuit Court’s rules, the Uighurs’ lawyer will not be allowed to file a reply unless the court expressly asks for one. There is no timetable for the Court to vote on the rehearing plea.

Trinity Lutheran Church of Columbia, Inc. v. ComerThe Missouri Department of Natural Resources' express policy of denying grants to any applicant owned or controlled by a church, sect or other religious entity violated the rights of Trinity Lutheran Church of Columbia, Inc., under the free exercise clause of the First Amendment by denying the church an otherwise available public benefit on account of its religious status.

Hernández v. Mesa(1) A Bivens remedy is not available when there are "special factors counselling hesitation in the absence of affirmative action by Congress," and the court recently clarified in Ziglar v. Abbasi what constitutes a special factor counselling hesitation; the court of appeals should consider how the reasoning and analysis in Ziglar bear on the question whether the parents of a victim shot by a U.S. Border Patrol agent may recover damages for his death; (2) It would be imprudent for the Supreme Court to decide Jesus Hernandez’s Fourth Amendment claim when, in light of the intervening guidance provided in Abbasi, doing so may be unnecessary to resolve this particular case; and (3) with respect to Hernandez’s Fifth Amendment claim, because it is undisputed that the victim's nationality and the extent of his ties to the United States were unknown to the agent at the time of the shooting, the en banc court of appeals erred in granting qualified immunity based on those facts.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.